Summary
The United States Court of Appeals for the Eighth Circuit considered whether a Minneapolis police officer was entitled to qualified immunity after shooting Ethan Marks in the face with a chemical-filled projectile during protests in Minneapolis. The court held that the shooting constituted a seizure and that, viewing disputed facts in Marks’s favor, a reasonable jury could find the force objectively unreasonable. The court further concluded that it was clearly established in May 2020 that an officer could not use deadly or comparable force against an unarmed individual who no longer posed an immediate threat.
Topics
Practice areas
Questions Presented
- Whether Bauer's deliberate firing of a chemical-filled projectile that struck Marks constituted a seizure under the Fourth Amendment even though Marks was not arrested.
- Whether the use of force was objectively unreasonable under the totality of the circumstances, including the events leading up to and existing at the moment force was deployed.
- Whether Bauer was entitled to qualified immunity because the alleged Fourth Amendment violation was not clearly established on May 28, 2020.
Holdings
- A seizure occurred because Bauer purposefully applied physical force through the projectile to restrain Marks's movement, knocking him to the ground, even though Marks was not arrested or detained beyond the moment of impact.
- The force was not objectively reasonable as a matter of law on the summary-judgment record when viewed in Marks's favor. A reasonable jury could find that Bauer shot an unarmed, falling person in the face at close range after the immediate threat to Officer Pobuda had ended.
- Bauer was not entitled to qualified immunity because, viewing the disputed facts in Marks's favor, it was clearly established by May 28, 2020 that an officer may not use deadly force, or more than de minimis force, against an unarmed, non-threatening, non-fleeing person who no longer poses an immediate threat.
Key quotations
“There is no separate “reasonableness” test for when deadly force is used.” (at 8)
“The situation at the precise time of the shooting will often be what matters most.” (at 10)
“He used a high level of force despite being given fair notice that at the time of this incident it was objectively unreasonable to use more than de minimis force to seize a non-threatening misdemeanant who was not fleeing, resisting arrest, or ignoring officer commands.” (at 16)
Factual background
During protests near the Minneapolis Police Department's Third Precinct, Marks approached Officer Jonathan Pobuda after Pobuda blocked Marks's mother from reaching an injured woman. Marks shouted, struck or appeared to strike Pobuda, and attempted to grasp Pobuda's riot baton, after which Pobuda pushed Marks away, causing him to stumble backward over a pipe. Although Marks was unarmed, several feet away from Pobuda, and separated from him by a bystander, Officer Bauer fired a chemical-filled 40-millimeter projectile from approximately five to ten feet away, striking Marks in the face and causing severe eye and brain injuries. Bauer's training identified the head as a high-risk target area and warned that the launcher could cause serious injury or death.
Procedural history
Marks sued Officer Bauer under § 1983 for alleged violations of the Fourth and Fourteenth Amendments after Bauer shot him in the face with a chemical-filled projectile. The district court denied Bauer's motion for summary judgment, concluding that genuine disputes of material fact precluded qualified immunity. The Eighth Circuit initially affirmed, the Supreme Court vacated and remanded in light of Barnes v. Felix, and the Eighth Circuit again affirmed the district court.